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2000 DIGILAW 810 (RAJ)

Babulal v. Board of Revenue for Rajasthan, Ajmer

2000-07-12

R.R.YADAV

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Honble YADAV, J.–The present writ petition has been filed to quash the impugned order dated 6.12.93 Annexure 3 to the writ petition passed by Revenue Appellate Authority and order dated 23.5.96, Annexure-4, passed by Board of Revenue. (2). The present writ petition is posted today for admission, but with the consent of learned counsel for the parties I propose to decide it on merits. (3). Indisputably, the petitioners filed a revenue suit before Sub Divisional Officer, Kota under sections 88, 89, 91 and 188 of Rajasthan Tenancy Act, 1955 along with an application under section 212 of the said Act, for injunction. It is not disputed before me that the Sub Divisional Officer granted ex parte ad interim temporary injunction only upto 24.11.93 with a direction to issue notices to the respondents to put forth their claim for final decision of the aforesaid application of temporary injunction under section 212 of the Rajasthan Tenancy Act. (4). It is amazing to note that respondent No.4, instead of appearing before Sub Divisional Officer and filing an objection, opposing interim temporary injunction granted by Sub Divisional Officer, filed an appeal before Revenue Appellate Authority. The Revenue Appellate Authority mechanically without applying his mind to the facts and circumstances, vide his order dated 6.12.93 has set aside the order of the Sub Divisional Officer dated 11.10.93 which was not in existence on the aforesaid date i.e. 6.12.93. After setting aside non existent order dated. 11.10.93, the Revenue Appellate Authority, instead of remanding the case to the Sub Divisional Officer, passed a fresh final order on merits on the application under Section 212 of Rajasthan Tenancy Act and partly allowed the appeal. (5). The present petitioners filed a revision before the Board of Revenue and Board of Revenue mechanically upheld the order passed by Revenue Appellate Authority, without applying its judicial mind to the facts and circumstances of the present case. (6). Aggrieved against the aforesaid orders dated 6.12.93 passed by Revenue Appellate Authority and order dated 23.5.96 passed by the Board of Revenue, the present writ petition has been filed under Article 226 of the Constitution of India. (7). I have heard learned counsel for the parties at length and perused the orders impugned, passed by Revenue Appellate Authority and Board of Revenue. (8). (7). I have heard learned counsel for the parties at length and perused the orders impugned, passed by Revenue Appellate Authority and Board of Revenue. (8). It is amusing to note that when the appeal came up for final hearing before the Revenue Appellate Authority on 6.12.93 ex parte interim injunction order granted by Sub Divisional Officer vide his order dated 11.10.93 has already come to an end and has outlived its utility. Thus, order passed by the Sub Divisional Officer, on 11.10.93, was not in existence on 6.12.93, when the appeal was taken up for hearing, by Revenue Appellate Authority, and as such question of its setting aside does not arise. In such a situation, the Revenue Appellate Authority ought to have dismissed the appeal having become infructuous instead of passing fresh final order on merits on the application moved under Section 212 of Rajasthan Tenancy Act, depriving the parties to get their respective claims finally decided on merits at first instance by Sub Divisional Officer, Kota, under the aforesaid Section. (9). It is conceded by the learned counsel for the parties that Revenue Appellate Authority as well as Board of Revenue mechanically set aside the order dated 11.10.93, passed by Sub Divisional Officer and passed final order on merits on the application moved under Section 212 of Rajasthan Tenancy Act, which was required to be decided at first instance by the Sub Divisional Officer, Kota. It is held that in the present case both the parties are entitled to have a final decision on merits under section 212 of Rajasthan Tenancy Act at the first instance by Sub Divisional Officer, Kota, within the meaning of aforesaid section. The Revenue Appellate Authority and Board of Revenue have no jurisdiction to ignore the mandatory provisions envisaged under section 212 of Rajasthan Tenancy Act which provides final decision on merits by Sub Divisional Officer, at first instance. (10). The Revenue Appellate Authority and Board of Revenue have no jurisdiction to ignore the mandatory provisions envisaged under section 212 of Rajasthan Tenancy Act which provides final decision on merits by Sub Divisional Officer, at first instance. (10). Assuming for the sake of argument that even against ex parte temporary injunction passed by Sub Divisional Officer, in exercise of his discretion under Section 212 of Rajasthan Tenancy Act, an appeal was maintainable before Revenue Appellate Authority, even then, since ex parte temporary injunction order dated 11.10.93, passed by Sub Divisional Officer, was not in existence and it has already outlived its utility, when the appeal came up for hearing before Revenue Appellate Authority on 6.12.93, then, he ought to have remanded the case to the Sub Divisional Officer to decide the application under Sec. 212 of Rajasthan Tenancy Act finally on merits, instead of deciding it himself finally on merit, depriving the parties to have a final decision on merits at first instance by Sub Divisional Officer within the meaning of aforesaid section. (11). It is strenuously urged by the learned counsel for the respondent No. 4 Shri K.K. Mehrishi that the document filed by the petitioners themselves proved the possession of respondent No.4. Suffice it to say in this regard that object of Article 227 of the Constitution, is to keep the Subordinate Courts and Tribunals, within its jurisdiction, and not to allow them, to transgress the statutory provisions, enacted by Legislature. In the present case, Revenue Appellate Authority and Board of Revenue both have transgressed its boundaries demarcated by State Legislature under Section 212 of the Rajasthan Tenancy Act, therefore, these orders deserve to be set aside for the reasons stated hereinabove. (12). It is next contended by learned counsel for the respondent No. 4 that in pursuance of the order passed by Revenue Appellate Authority and the Board of Revenue, respondent No.4 has deposited security in pursuance of order of Revenue Appellate Authority. It is held that deposits so made by the respondent No. 4, shall abide the result of final decision on merits of the application u/Sec. 212 of the Rajasthan Tenancy Act, by Sub Divisional Officer at first instance in accordance with law. (13). It is held that deposits so made by the respondent No. 4, shall abide the result of final decision on merits of the application u/Sec. 212 of the Rajasthan Tenancy Act, by Sub Divisional Officer at first instance in accordance with law. (13). As a result of aforesaid discussion, the instant writ petition is hereby allowed and the order dated 6.12.93, Annexure-3, passed by Revenue Appellate Authority and the order passed by Board of Revenue dated 23.5.96, Annexure-4 to the writ petition are set aside and the case is remitted to Sub Divisional Officer, Kota, with a direction to decide the application moved under Section 212 of Rajasthan Tenancy Act finally on merit in accordance with law after giving full-fledged opportunity of hearing to both the parties which includes to allow both the parties to adduce their evidence in support of their respective claims. The ad interim stay order granted on 9.1.97 by this court is hereby discharged.